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Judicial Modesty and Severability

As we digest the Obamacare oral arguments of the past three days, here’s a brief note on yesterday’s severability issue. The academics and pundits who assured us that the Court would easily dispose of this case—8-1 or, at worse, 6-3—were not only set back on their heels by Tuesday’s sharp attacks on the government’s Commerce Clause arguments, but even more, perhaps, by the openness of the Court’s conservatives to throwing the whole thing out. Thus, their spin now, championed prophylactically yesterday by The New York Times, is that the Court must “recognize limits on its own authority to overturn well-founded acts of Congress.” Heaven forfend us from judicial activism.

Heartening as it may be to find the Times and its followers discovering at last the virtues of judicial modesty and limited power, were the Court to rule that compelling individuals to engage in commerce is beyond Congress’s power to regulate already existing commerce, and to rule further that because the Patient Protection and Affordable Care Act’s mandate is inextricably bound up with its guaranteed issue and community rating provisions, as even the government admits, all of which constitutes the “heart of the Act,” the whole thing must go, that would not be an exercise of judicial activism.

Indeed, were the Court to ignore Justice Scalia’s plea and take upon itself the task of sifting through the Act’s 2,700 pages to try to determine what should stay and what should go—Justice Ginsburg’s “salvage job”—it would then be engaging in the kind of policy judgments that are reserved to the political branches—the very essence of judicial activism. Of course, the Court could also notice that Congress originally had a severability clause in the Act, but it took it out in the final version. That’s pretty good evidence that Congress wanted Obamacare to stand or fall in one piece.